# Km. Sunita v. State of U.P. & Ors

- **Citation:** (2021) 1 ILRA 672
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-07
- **Case number:** Special Appeal (D) No. 1189 of 2020
- **Bench:** Govind Mathur, C.J. Piyush Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-sunita-v-state-of-u-p-ors-46114
- **Pages:** 6

## Headnote

A. Constitution of India - Article 14 -
Reasonableness - Doctrine of legitimate
expectation
-
Principle
of
'reasonableness' is one attribute to
equality or non-arbitrariness protected
by Article 14 of the Constitution -
Doctrine of legitimate expectation too
has been included as an important limb
of reasonableness. (Para 13 and 15)
B. Service law - Selection - Counselling
for post of Assistant Teacher - Liability
to
convey
the
respondents
about
willingness to attend counselling within
the time prescribed - Failure - Effect -
Appellant-petitioner is a woman working
as Constable - Immediately after calling
off the lockdown, she requested the
competent authority to allow her to face
the counselling - Counselling is nothing
but
verification
of
documents
-
Counselling is still going on - Held, the
respondents, who are under obligation
to have best hands on basis of merit
examined,
looking
to
the
existing
circumstances, especially involvement of
the appellant-petitioner in COVID-19
duties and further as the counselling
was in currency, should have called her
to face the counselling. (Para 16 and 17)
Special Appeal allowed. (E-1)
Cases relied on :-

## Text

672 INDIAN LAW REPORTS ALLAHABAD SERIES
there is a provision for taking the order of
dismissal in appeal before the competent
authority.

The writ petition is dismissed on the
ground of existence of alternative remedy.
It is open to the petitioner to avail such
remedy if so advised."

9. Argument of learned counsel for
the appellant-petitioner that the learned
Single Judge could not have dismissed the
writ petition on the ground of alternate
remedy is fallacious from the bare perusal
of the order dated 12.10.2020 which is
impugned in the present special appeal, it is
apparent that the same is an order passed
by a consent of learned counsel for the
parties appearing in the matter that there is
a provision for taking the order impugned
therein in appeal before the competent
authority. In so far as the judgements relied
upon by learned counsel for the appellantpetitioner is concerned, the same are not of
any help in the dispute in the present matter
as the same are addressing the question as
to maintainability of a writ petition during
the existence of an alternate remedy to a
person who has approached the Court. The
position of law as settled till date that
availability of alternative remedy is not a
bar in entertaining writ petition under
Article 226 of the Constitution of India is
not in dispute. The argument of learned
counsel for the appellant-petitioner is at an
error in the matter as the writ petition was
dismissed by the order impugned on the
admitted fact of availability of alternative
remedy.

10. In so far as it relates to the
argument of learned Standing Counsel, the
same does impress us and is also supported
by the said view through the judgements
relied by him that no appeal lies against a
consent order.

11. The present Special Appeal thus is
not maintainable as it has been filed against
an order passed with consent.

12. The present Special Appeal is thus
dismissed as not maintainable.

13. Needless to say, the appellantpetitioner is at liberty to seek his
appropriate remedy before the learned
Single Judge, if so advised.

14. The party shall file computer
generated copy of order downloaded from
the
official
website
of
High
Court
Allahabad, self attested by it alongwith a
self attested identity proof of the said
person
(s)
(preferably Aadhar
Card)
mentioning the mobile number (s) to which
the said Aadhar Card is linked, before the
concerned Court/Authority/Official.

15.

The
concerned
Court/Authority/Official shall verify the
authenticity of the computerized copy of
the order from the official website of High
Court Allahabad
and
shall
make
a
declaration of such verification in writing.
----------
(2021)01ILR A672
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.12.2020

BEFORE

THE HON'BLE GOVIND MATHUR, C.J.
THE HON'BLE PIYUSH AGRAWAL, J.

Special Appeal (D) No. 1189 of 2020

Km. Sunita ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Udai Narain Khare, Sri Basdeo Nishad
1 All. Km. Sunita Vs. State of U.P. & Ors.
673
Counsel for the Respondents:
C.S.C., Sri Arun Kumar

A. Constitution of India - Article 14 -
Reasonableness - Doctrine of legitimate
expectation
-
Principle
of
'reasonableness' is one attribute to
equality or non-arbitrariness protected
by Article 14 of the Constitution -
Doctrine of legitimate expectation too
has been included as an important limb
of reasonableness. (Para 13 and 15)
B. Service law - Selection - Counselling
for post of Assistant Teacher - Liability
to
convey
the
respondents
about
willingness to attend counselling within
the time prescribed - Failure - Effect -
Appellant-petitioner is a woman working
as Constable - Immediately after calling
off the lockdown, she requested the
competent authority to allow her to face
the counselling - Counselling is nothing
but
verification
of
documents
-
Counselling is still going on - Held, the
respondents, who are under obligation
to have best hands on basis of merit
examined,
looking
to
the
existing
circumstances, especially involvement of
the appellant-petitioner in COVID-19
duties and further as the counselling
was in currency, should have called her
to face the counselling. (Para 16 and 17)
Special Appeal allowed. (E-1)
Cases relied on :-
1. Menka Gandhi Vs U.O.I. & anr., AIR 1978
SC 56
2.
Ramana
Dayaram
Shetty
Vs
The
International Airport Authority & ors., AIR
1979 SC 1628

(Delivered by Hon'ble Govind Mathur, C.J.
& Hon'ble Piyush Agrawal, J.)

1. To examine correctness of the order
dated 21st October, 2020 passed by learned
single Bench, this appeal is before us.

2. The order aforesaid reads as
under:-

"Heard
learned
counsel
for
the
petitioner
and
the
learned
Standing
Counsel.

The instant petition has been preferred
seeking the following relief:-

"Issue a writ order or direction in the
nature
of
mandamus
directing
and
commanding the respondents to allow the
petitioner to join the counselling which is
still in process.

Issue a writ order in the nature of
mandamus directing and commanding the
respondent permit the petitioner to join the
counselling and issued to appointment
letter to the petitioner and to and permit
him join the services as the petitioner
during pendency of the writ petition."

Admittedly although the petitioner
participated in the Assistant Teacher
Recruitment Examination, she was not
included in the counselling sessions which
were held thereafter since she did not
submit the requisite online form. According
to the petitioner since she was on duty at
the relevant time, she could not complete
the formalities as a consequence of which
she has been denied the right to participate
in the counselling process.

Sri Arun Kumar learned counsel
appearing for the department apprises the
Court that a candidate who had cleared the
written examination was only required to
submit an online form to participate in the
counselling process and that all other
details were to be gathered by the
Department from the application form that
had already been submitted.

The Court notes that it is not the case
of the petitioner that she did not have the
requisite facility to either access the
internet or to submit the application online.
The submission of choices for the purposes
674 INDIAN LAW REPORTS ALLAHABAD SERIES
of participating in the counselling did not
require any physical steps to be taken.

In view of the aforesaid, the Court
finds no ground to issue the writs as
prayed. The writ petition consequently
stands dismissed."

3. Factual matrix of the case is that on
16th May, 2019 the respondents notified
69000 vacancies relating to the post of
Assistant
Teacher.
The
vacancies
so
notified were to be filled in by way of
direct recruitment and for the purpose, a
competitive examination i.e. "Assistant
Teacher Recruitment Test 2019" was to be
conducted. As per the scheme of the
process of selection, in the first phase
aspirants were to compete the test of 2019
and then to go for counselling. Suffice to
state that the counselling is nothing but
verification of documents and allotment of
district for appointment as per choice and
merit of the selected incumbent. To face the
test, the aspirants were supposed to submit
an application in the prescribed proforma
and on qualifying the test they were also
supposed to submit a requisition to be
called to attend the counselling.

4. The appellant-petitioner a female
member of the Other Backward Caste class
presently holding the post of Constable in
the Uttar Pradesh Police submitted an
application in pursuant to the notification
dated 16th May, 2019 and participated in
written test. On 24th March, 2020 nation
wide lockdown was declared to combat
virus COVID-19. During lockdown, result
of the written test was declared on 12th
May,
2020.
The
appellant-petitioner
secured multiplication of merit marks
67.8% gross. She was to attend counselling
on 28th May, 2020 subject to submitting
online requisition for the purpose. The
appellant-petitioner at the relevant time was
deputed
with
COVID-19
duties
at
Gorakhpur. Her original documents were
lying at her native place and during the
period of lockdown she had no means to
borrow the same from her home.

5. Be that as it may, the appellantpetitioner being on COVID-19 duties failed
to submit requisition to attend counselling.
However, on the day next to calling of the
lockdown she submitted a representation to
the authority competent to allow her to
attend the counselling. In the representation
in quite unambiguous terms she narrated all
the circumstances preventing her from
submitting requisition/application showing
her desire to attend counselling.

6. On being failed to have any
positive response from the respondents, she
approached single Bench of this Court to
have a writ in the nature of mandamus but
that came to be dismissed under the order
impugned dated 21st October, 2020.

7. In appeal, the argument advanced on
behalf of the appellant-petitioner is that she
failed to submit online application showing
her desire to attend counselling due to
unavoidable reasons, therefore, the equity
demands that an opportunity be given to her
to face counselling. It is the position admitted
that the counselling is still going on and that
would be concluding on 30th December,
2020.

8. While opposing and defending the
judgment passed by learned single Bench, it
is submitted by learned Standing Counsel that
the entire process of selection was online and
the appellant-petitioner admittedly, failed to
submitted application to face counselling.

9. In absence of application form, it
was not at all possible for the agency
1 All. Km. Sunita Vs. State of U.P. & Ors.
675
conducting the process of selection to call
her to face the process and further that in
the scheme of the process of selection there
is no provision to allow any person by
manual submission of requisition to attend
counselling that too subsequent to the date
of counselling given to the candidate
concerned.

10. It is submitted that even during
the lockdown the appellant-petitioner could
have submitted application online as done
by several other candidates.

11. Heard learned counsels appearing
on behalf of rival parties.

12. The preposition for adjudication on
basis of the argument advanced on behalf of
the appellant-petitioner is that "whether in
given
set
of
facts
the
principle
of
reasonableness demands for issuing a writ in
the nature of mandamus to the respondents to
allow the appellant-petitioner to face the
counselling
for
consideration
of
her
candidature for the purpose of appointment as
Assistant Teacher?

13. At the threshold, it would be
appropriate to State that the principle of
"reasonableness" is one attribute to equality
or non-arbitrariness protected by Article 14 of
the Constitution of India.

14. In Menka Gandhi Vs. Union of
India and another reported in AIR 1978
SC 56 the Supreme Court held that the
members of reasonability legally as well as
philosophically is an essential element of
equality or non-arbitrariness every action of
the State may that be administrative must
right,
just,
fair
and
without
any
arbitrariness. No action should be fanciful
or oppressive.

15. In Ramana Dayaram Shetty Vs.
The International Airport Authority and
others reported in AIR 1979 SC 1628 the
Apex Court while giving more larger
meaning to non-arbitrariness held that
action of the government in different
eventualities including the award of jobs
must be rational, relevant and nondiscriminating.
Any
injury
to
these
standards would liable to struck down
action concerned. The law laid down by the
Supreme Court in Menka Gandhi Vs.
Union of India and another (supra) as
well as Ramana Dayaram Shetty Vs. The
International Airport Authority and others
has further been enriched in last four
decades and the doctrine of legitimate
expectation too has been included as an
important limb of "reasonableness". The
constitutional
courts
are
required
to
examine every action brought before it for
scrutiny in light of the principle of
reasonability inter alia.

16. In the case in hand, the appellantpetitioner is a young girl from rural part of
Uttar Pradesh belonging to Other Backward
Caste. Presently she is holding the post of
Constable in Uttar Pradesh Police. As a part
of her duty, she was posted in an operation
to combat COVID-19 pandemic duties at
Gorakhpur. While working as Constable
she had an aspiration to become a Teacher
and for that she faced a process of
selection. She qualified written test with
quite higher marks. Admittedly, she was
entitled to face counselling, which is
nothing but verification of documents and
other testimonials. Unfortunately, being
engrossed with COVID-19 duties, she
failed to convey the respondents about
willingness to attend counselling within the
time prescribed but immediately after
calling off the lockdown, she requested the
676 INDIAN LAW REPORTS ALLAHABAD SERIES
competent authority to allow her to face the
counselling.

17. Worthwhile, to note here that the
counselling was in process at that time and
that is still going on. The respondents, who
are under obligation to have best hands on
basis of merit examined, looking to the
existing
circumstances,
especially
involvement of the appellant-petitioner in
COVID-19 duties and further as the
counselling was in currency, should have
called her to face the counselling. Instead
of it, they chose to keep silence on the
request made by the appellant-petitioner
and compelled her to approach the writ
Court.

18.

Learned
single
Bench
dismissed the writ petition arriving at
the conclusion that the involvement of
the appellant-petitioner in COVID-19
duties would not have any hindrance in
submitting an online request/application
to disclose her willingness to join the
counselling.

19. True it is, the online process
was available to the appellant-petitioner
but Court should have examined that
whether a person working as Constable
had any opportunity to leave her duties
and to avail a device to satisfy online
process. The appellant-petitioner may
also not have a smart phone with her or
even the internet connectivity to avail
online facility. In such circumstance,
she had to go to some other place may
that be e-mitra or otherwise but merely
a failure to avail that, does not mean
that she was not interested in facing the
counselling.

20. More important fact deserves
to be noticed is that immediately after
calling
off
the
lockdown
she
represented to the respondents to have
counselling. Being a person discharging
duties to combat COVID-19, she must
be having an expectation to have
support
from
the
system
in
all
adversaries for her further development.
The denial to consider her request to
face couselling reflects arbitrariness
and also an approach unfair and unjust.
The
circumstances
would
have
a
different, if the counselling would have
been completed or the process of
selection would have not in currency
but that is not so. Admittedly, the
counselling is still going on and will
continue till 30th December, 2020.

21.
 Looking
to
this
factual
background, the appropriate course was
to allow her to face the counselling for
the purpose of appointment as Assistant
Teacher. Learned single Bench, in our
considered opinion, did not consider the
aspect of reasonability while dismissing
the petition for writ.

22. In view of whatever stated
above, this appeal deserves acceptance.
Accordingly, the same is allowed. The
judgment impugned dated 21st October,
2020 passed by learned single Bench in
Writ-A No.5011 of 2020 is set aside.
The petition for writ preferred by the
appellant-petitioner is accepted. The
respondents are directed to call the
appellant-petitioner to face counselling
for the purpose of appointment as
Assistant
Teacher
and
further
to
consider
her
candidature
for
appointment as Assistant Teacher in
pursuance to the notification dated 16th
May, 2019 in accordance with law. No
order to cost.
----------
1 All. M/S B.S. Enterprises, Agra Vs. The Commissioner of Commercial Tax, U.P. Lucknow
677
(2021)01ILR A677
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.12.2020

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Commercial Tax Revision No. 94 of 2020

M/S B.S. Enterprises, Agra ...Applicant
Versus
The Commissioner of Commercial Tax,
U.P. Lucknow ...Opp. Party

Counsel for the Applicant:
Sri Vishwjit

Counsel for the Opp. Party:
C.S.C.

(A) Tax - Best Judgment Assessment - The
Assessing Authority, solely on the basis of one
fake tax invoice amounting to Rs. 11,970,
assessed evaded sales at Rs. 26,15,000/- which
is 100% of the disclosed sales. Apart from only
one bill the Assessing Authority had nothing
more to form an opinion that the sales equal to
the declared sales should be determined as
evaded sales. Therefore, this Court found it
justifiable to hold evaded sales to be 10% of the
total disclosed sales for the purpose of
determining the tax liability. (Para 19, 20)

Revision Partly Allowed. (E-8)

List of Cases cited :-

1. M/s Kapil Kumar & Brothers, Gautam Budh
Nagar Vs Commissioner of Trade Tax Vol. 34
NTN 2007, Page 171 (followed)

2. Ayyub Traders Vs Commissioner, Commercial
Tax U.P., Lucknow 2019 U.P.T.C. (Vol. 102) -
1363

3. M/s Vivek Agency thru' Prop. Gyan Prakash
Kesarwani Vs The Commissioner of Tarde Tax,
U.P. Lucknow Sales/Trade Tax Revision No. 317
of 2007
4. M/s Raj Pan Products Pvt. Ltd. Vs
Commissioner of Commercial Tax, U.P. Lucknow

5. St. of Kerala Vs C. Velukutty (1966) 60 ITR
239

6. The Commissioner of Income Tax, Calcutta
Vs Padamchand Ramgopal (1970) 3 SCC 866

7. Ms Joharmal Murlidhar & Co. Vs Agricultural
Income Tax Officer, Assam & ors. (1970) 3 SCC
331

8. Shri S.M. Hasan, S.T.O. Jhansi & anr Vs M/s
New Gramophone House, Jhansi (1976) 4 SCC
854

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard Sri Vishwjit, learned counsel
for the revisionist and Sri Rishu Kumar,
Standing Counsel appearing on behalf of
State-opposite party.

2. In view of the statement made by
the Standing Counsel that he does not want
to file any objections, I proceed to hear and
decide the matter finally.

3.

The
present
assessment
proceedings arise from the Assessment
Year 2013-14 wherein the revisionist has
disclosed the turn over of purchases and
sales as under:

(1) Total purchases
from
the
registered
dealers:
16,65,367.00
(2) Sales within U.P.
(a) Taxable
Rs. 65,400.00
(b) Non-taxable
Rs. 20,000.00
Total sales within U.P.
85,400.00
(3) Central Sales
Rs.
25,29,563.00
Gross Turn over of
sales:
Rs. 26,14,96300